TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 202
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.... not explained, (ii) the decisions relied upon by AR were distinguishable on facts. It is also noticed that Hon'ble Tribunal has relied upon the decision in the case of Bechardas Parmar (341 ITR-499) (Guj.) and further held that the Dept had detected other five bank accounts. 2. In the humble submission of the applicant, the apparent error is as under:- 2.1. The applicant submits with utmost respect that the finding given by Hon'ble Tribunal that the source of deposit in said bank accounts was not explained by the assessee-applicant is not factually correct in as much as it would be noticed from the assessment order itself that while explaining the modus operandi it was pointed out as under:- "With initial capital contribution of several persons named above I have made investment in shares and securities of funds initially contributed in cash is employed by way of cash deposits in different bank accounts particulars whereof are disclosed with the return..." 2.2. The next finding given by Hon'ble Tribunal that five bank accounts were detected by Dept. And in view of transfer entries the disclosure cannot be said to be voluntary is also not factually correct in as much as the....
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....e assessee against the order of the Commissioner of Income Tax (Appeals)-XX, Ahmedabad dated 04.02.20111. 2. The sole ground taken in both the appeals by the assessee is that the ld. Commissioner of Income Tax (Appeals) erred in facts and in law in confirming the penalty of Rs. 1,33,400/- for Assessment Year 1991-92 and Rs. 3,88,700/- for Assessment Year 1992-93 levied by Assessing Officer u/s. 271(1)(c) of the Act. 3. We heard the rival submissions and perused the orders of lower authorities and material available on record. In the instant case, the assessee filed its return of income disclosing income of Rs. 31,880/- in Assessment Year 1991- 92 and Rs. 36,880/- in Assessment Year 1992-93. Thereafter, it was found on investigation by the Department that the assessee was having certain bank accounts which were not disclosed to the Department. Accordingly, the peak balance in the undisclosed bank accounts were treated as income of the assessee. 4. The Assessing Officer completed the assessment by determining assessee's total income at Rs. 3,19,480/- in the Assessment Year 1991-92 and at Rs. 5,77,070/- in Assessment Year 1992-93. 5. On appeal, the said total income was reduce....
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....case, the addition was made on actual peak balance in the bank account for which no plausible explanation about the source of the same could be given by the assessee. Therefore, such decisions are found to be not applicable in the instant case. 12. Further, in this connection we would like to quote the decision of the Hon'ble Gujarat High Court rendered in the case of CIT Vs. Becharbhai P. Parmar (2012) 341 ITR 0499 (Guj.) wherein the Hon'ble High Court has held as under: "Penalty corresponding to the addition of Rs. 17.22 lakhs was deleted on the ground that the assessee had demonstrated that there was estimation of additions and that, therefore, no penalty could be levied. Here again, we are of the opinion that the Tribunal interfered with the penalty on the ground which was not permissible. Additions made on the basis of estimation may be one of the grounds on which discretion not to impose penalty may be exercised. However, in the absence of any requirement to prove the concealment or furnishing of inaccurate particulars found in section 271(1)(c) of the Act cannot form the sole basis to delete penalty imposed by the Assessing Officer and confirmed by the Commissioner (Appeal....
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....ure of the assessee of existence of the said 5 bank accounts cannot be held as voluntary. We do not find any error much less an apparent error in the above finding of the Tribunal. 8. Further, the assessee contends that the decision in the case of Murarilal Ratanlal Agarwal vs. ACIT and Shri Ojas Ashokbhai Mehta are not distinguishable on facts from the fact of the instant case. We find that the Tribunal in its order observed that the fact in those cases were that penalty was levied in respect of difference in peak deposit as disclosed by the assessee and peak deposit as estimated by the department in undisclosed bank account and in the instant case no penalty was levied in the difference between the peak deposit as disclosed by the assessee and peak deposit as estimated by the department. 9. We find that in those cases it was not at issue that whether penalty u/s. 271(1)(c) is leviable in respect of the income which has been added to the total income of the assessee on the basis of actual peak balance in undisclosed bank account which is the issue in the instant case before the Tribunal. In the instant case it was not the issue that there was difference in the peak balance as di....